Legal Luminance -First Christmas

Dear Readers,
Thank you for all your support this year. Continue to study and educate yourselves in 2015, go out follow your dreams and achieve your ambitions.
Merry Christmas!
Warmest festive regards,
Kelly Thornton
xxxxxx

‘There is no opposition between legal positivism and natural law theory. They are more like ships passing in the night, i.e. they are engaged in fundamentally different projects and in solving different problems.’

To decipher this statement and analyse the validity of its claim I will first consider the points at which natural and positivist legal theories are engaged in fundamentally different projects and solving different problems. Next I will consider the overlaps between the two sets of theories that suggest that they are engaged in the same project and so are more than ships passing in the night. I will then conclude that the positivist and natural law traditions are more than ships passing in the night and in reality although they sometimes take fundamentally different stances on issues of legal theory, common ground can be found where one must subscribe to either the positivist or natural law tradition.

Section 1- Natural Law theory and Positivist Legal theory are ships passing in the night

One difference between positivist and natural law theories is that the positivists separate law and morals whilst the natural law theorists think that law includes at least some moral elements.

Hart accepts the separation of two distinct projects: theorising about law as it is, and about law as it ought to be. He believes that Bentham and Austin were trying to establish that a rule cannot be considered law just because it is moral and a law is not valid because it is moral. Hart then uses this idea to come to the conclusion that there is no necessary relationship between law and morality. This is the ‘separation thesis.[1]’ However, it is arguable that there is an overlap between Hart and the natural legal theorists. Hart thinks that the Rule of Recognition may incorporate moral principles[2], as in the case of the US Constitution[3] where ‘the ultimate criteria of validity incorporate principles of justice or substantive moral values’. However Hart does not say that law must contain moral elements.  Hart is a soft positivist[4] so he allows laws and morals to intertwine but does not say that they must and therefore law and morals can stay completely separate. In this way positivism and natural law theory can be aimed at different projects, positivists focus on the law alone whereas natural legal theorists focus on law and morality and inextricably linked fields.

At the other end of the jurisprudential spectrum is Aquinas, a natural legal theorist, who argued that Law is a rule in virtue of which one is led to perform certain actions it binds one to a certain course of action[5]. He argues that law ought to be moral in order to be valid. He explains that human law should ultimately come from the eternal law which is God’s law for all of time. Eternal law[6] is known via divine law[7] which includes all religious manuscripts that enable humans to have access to the law of God. These manuscripts are understood by humans through reason and good human law should include these moral principles[8]. It is through this process of incorporating God’s will and therefore morals into human law that Aquinas explains that law should always contain moral elements. Aquinas emphasizes the fact that just law should oblige the conscience and be aimed at the good of society[9]. However, he makes clear that if law is unjust it does not mean that you automatically should disobey it because this may lead to scandal and that is detrimental to the good of society. This is clearly still relevant today when we experience scandals such as the London Riots of 2011[10]. It is this aspect of Aquinas’ theory that suggests that positivist and natural legal theories are fundamentally different projects and so are not in opposition.

Another clear point of opposition between natural law theory and positivist theories is the distinction between is and ought. Positivist theories aim at a scientific jurisprudence based in logic and describing law as it is, whilst natural law theories are normative and talk about law as it ought to be.

Hume[11] famously stated that you cannot derive a statement about what ought to be from a statement about what is. Essentially this gives rise to the naturalistic fallacy[12] whereby natural law theories confuse ‘is’ and ‘ ought’ statements and are thus illogical. Therefore positivists are careful to make a distinction between what the law is and what the law ought to be.

Few positivists emphasise this distinction more clearly than Hart. Throughout his famous work ‘The Concept of Law’ [13] he is careful to maintain that he is describing the law and not making claims about what the law ought to be. Hart views law as a human creation established through political power and claims to use sociology to explain that how people talk about law shows that law itself is social reality[14].  However, Hart’s claimed sociological view of law has come under fire from Roger Cotterrell[15] whom argues that Hart does not actually distinguish what law is from what law ought to be because he does not actually go out into society and research how people use the term ‘law’. Therefore he is not really performing any kind of sociological research and thus his claim that law is social reality is unproven. Hart is merely stating that law ought to be a social reality and without proof of how the term ‘law’ is used his assertions can only be normative.

Conversely, natural law theorists tend to define law in a normative way. A good example is, the founder of modern philosophy, Plato who devoted an entire series of books known collectively as ‘The Republic’[16] to explaining how the legal system would work in an ideal society. Plato argued that the state should be run by philosopher kings who understand the forms and can reflect them in the law of the land in order to make the perfect society. The forms[17], are immutable and unchanging, eternal versions of everyday objects and concepts. In this way Plato focuses primarily on the normative nature of law by deciding how the perfect legal system ought to function.

Section 2: Natural Legal Theory and Positivist legal theory are engaged in fundamentally the same project and solving the same problems

It can be argued that both natural and positivist legal theories aim at defining the law.  For example, the natural legal theorist Fuller sees the basic purpose of law as a:

‘Collaborative and purposive enterprise of placing human conduct under the governance of rules for the purpose of establishing a framework for the peaceful interaction of persons’[18]

Fuller therefore argues that when a rule is practically impossible to follow it is not a law. This could be the case in situations such as that in Nazi Germany where secret rules were left unpublished in order to allow high ranking Nazi soldiers to be authorized to kill Jews[19]. Fuller sees the process of making law as a very important part of making rules that can rightfully be called law. He states in the allegory of Rex[20] that there are desiderata that are minimal conditions but also aspirations for good law. Fuller’s aim is to create requirements of valid laws that help to define laws and a legal system that will be just and not tyrannical.

Hart also tries to define law but makes a point of explaining that the law cannot be defined as a term in itself. Using linguistic philosophy[21], Hart explains that what law is must be defined with reference to the social situations in which the term law is used and the context of the sentence it is in. Whilst this goes some way to undermining the suggestion that positive and natural law theories actually both try and define law because Hart suggests that the term law cannot be defined generally and in itself, it is worth noting that Hart is not denying the need to define law he just does so via a different method to other legal positivists by insisting on the use of linguistic philosophy.  Subsequently, Hart does not undermine the view that both positivist and natural legal theories are the same ship both sailing in search of a definition of law.

The final common aim for natural and positivist law theories to mention is the importance that both sets of theories place on justifying the authority of law.

Legal positivist MacCormick[22] justifies the authority of law by saying that the way in which the normative order becomes institutionalised justifies the legal institutions as authorities. MacCormick gives the example of a queue[23]arguing that when a dispute erupts in a queue (for example about whether or not someone can push in to the queue due to an emergency) the first way in which this normative issue (ought one push into the queue?) is institutionalized is through someone adjudicating the dispute between two people in the queue. Next someone in the organisation where people are queuing is given standing authority to adjudicate disputes between people in the queue. Finally, in order to assist that person resolving disputes, and making sure that decisions are consistent, transparent norms will be articulated (for example about conditions that must be fulfilled to allow you to jump the queue). MacCormick argues that it is this process that over time and through people obeying the judgements of the person adjudicating disputes in the queue that the legal institutions gain authority.

From a natural law perspective the authority of law is important and must be justified. Aquinas, for example, argues that law should always be obeyed unless it will result in scandal and thus the common good will no longer be pursued[24]. As mentioned above, Aquinas says that law must oblige the conscience and so law that does not do this does not have the authority to be called law. Aquinas understands the authority and justice of the law to come from laws that serve the common good and not the purpose of the law makers, they must be within the law makers’ powers and in line with divine goodness.

To summarise, it is clear from looking at McCormick and Aquinas that both natural and positivist legal theories recognize the need to justify the authority of the law.  In this sense both sets of theories are aimed at the answering the same question and are in opposition and cannot be considered merely ships passing in the night.

Conclusions

To conclude, positivist and natural law traditions are mainly concerned with the same questions and so are more than just ships passing in the night. Although positivists generally subscribe to the separation thesis and many natural law theorists fall into the trap of the naturalistic fallacy, the common aim of the two traditions is working out how law fits into the world we know, whether in connection with morality or not. Positivists are keen to look at what law is whilst natural law theorists focus on law as it ought to be, however, Hart’s misguided use of the term sociology shows that positivism and natural legal theories cannot be easily separated on this issue and so the theorists are sailing the same ship. Both traditions aim to define law despite using a variety of different methods and both place value on justifying the authority of law and legal systems.

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[1] Separation thesis- http://plato.stanford.edu/entries/lawphil-nature/ accessed on 05/11/2014 at 19:11

[2]Penner, Schiff and Nobles, Jurisprudence and Legal Theory: Commentary and Materials (Butterworths 2002) Chapter 4 Hart and Analytical Jurisprudence

[3] DeHart,  Uncovering the constitution’s moral designs (University of Missouri Press 2007)

[4] Wacks, Understanding Jurisprudence: An Introduction to Legal Theory (1^st edition Oxford University Press 2005) Soft Positivism p70-72

[5] Davies and Stump, The Oxford Handbook of Aquinas (Oxford University Press 2012)

[6] Aquinas, Summa Theologiae la IIae, q91, 1- The Various types of Law

[7] Ibid

[8] Penner, Schiff and Nobles, Jurisprudence and Legal Theory: Commentary and Materials (Butterworths 2002) p 41-42

[9] Ibid

[10] http://www.theguardian.com/uk/london-riots acessed on the 2/11/14 at 14:56

[11] Penner, Schiff and Nobles, Jurisprudence and Legal Theory: Commentary and Materials (Butterworths 2002) p 41 - 42

[12] Hume, Treatise of Human Nature 1739, Book 3 part 1 Section 1

[13] Hart, The Concept of Law (Third Edition, Oxford University Press 2012)

[14] Ibid Chapter 1 – Persistent Questions p 13  

[15] Cotterrell, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (second edition, Oxford University Press 2003) Sociological Drift p 90-92

[16] Plato, The Republic, 360 BCE

[17] Welton, Plato’s Forms: Varieties of Interpretation (Lexington Books 2002) The Forms as Theory p 3

[18] Fuller, The Morality of Law (Yale University Press 1964) p 30

[19] Lang, An Act and Idea in Nazi Genocide (Syracuse University Press 2003) p 43

[20] Fuller, The Morality of Law (Yale University Press 1964) p 33

[21] Cotterrell, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (second edition, Oxford University Press 2003) Hart’s Linguistic Empiricism p83-87

[22] McCormick, My Philosophy of Law, (Edinburgh University Press 1999)

[23] Ibid  p 138

[24]  Penner, Schiff and Nobles, Jurisprudence and Legal Theory: Commentary and Materials (Butterworths 2002) p42

Apologies

Dear Readers,
I apologize for the lack of content. I have been lucky enough to have been selected for 2 mini pupillages and I have been doing lots and lots of court visits and interesting client conferences. I will aim to post about my tips for mini pupillage in the next few weeks and will shortly be posting my first legal philosophy article.
Regards,
Kelly Thornton

The criminologist's dilemma: To what extent is a criminal born not made?

Introduction

This article  will analyse the claim that ‘criminals’ are predisposed from birth to commit crimes. This has always been an appealing topic in criminology because if we can understand what causes people to commit crime, then we may be able to reduce crime rates. If criminals are born, law abiding citizens can live in the comfort of knowing that criminals are only capable of such evil crimes because they are not ‘normal’ like the rest of the law abiding population. However we would risk creating a sub-species of humans who are labelled ‘criminals’ even before they have committed a crime and therefore could be falsely accused of potential crime. As a result of this  the foundational principles of justice in the UK criminal justice system would be destroyed. In this essay I will examine the question: To what extent is a criminal born not made? from three perspectives. Firstly the philosophical perspective, whether or not we have a fixed human nature and how that affects our ability to commit crimes. Secondly, what exactly makes us commit crimes, and thirdly, the control of our behaviour through training and whether we can change people who show the characteristics of a criminal?

Is crime part of human nature?

Philosophers have been debating about human nature for centuries. In this book Leviathan[1], Hobbes looks at the ‘state of nature’ a hypothetical situation before society, where man is left without social order and hierarchy and concludes that ‘life in a state of nature would be nasty brutish and short’. This encapsulates Hobbes’ view that humans are naturally unsociable and will commit crimes in order to satisfy their own hedonistic needs.[2] In order to remedy this Hobbes explains that society provides safety by means of a ‘social contract’ whereby we agree to live in a social format in order to be protected from the brutal state of nature we would otherwise be in. Hobbes goes on to explain how in society we are controlled by the sovereign, whom is a mortal god and keeps us in order, ensuring we are stopped from committing the acts we would be naturally inclined to perform if we were left in a natural state.

In terms of whether criminals are born or made, Hobbesian philosophy suggests that everyone has the ability to commit crimes and naturally we all would. Society saves us from our own criminal instincts but still gives us the safety and security we need to survive, the safety and security that in a state of nature would lead to us committing crimes. It could be argued that we cannot test the theory because we can never recreate a state of nature and find out exactly what people would do if there were no laws or social hierarchy. However, in response to this I would argue that in times of war and social collapse humans tend to act in a more criminal and instinctive way as the social boundaries that once confined our behaviour crumble.  Plato famously creates a similar thought experiment in ‘The Republic’[3] called the Ring of Gyges whereby he postulates that if we could have a ring that allows us to remain undetected we would commit crimes and immoral acts because we would know that we cannot be punished for it. For me, the London riots of 2011[4] are a prime example of this. In 2011 riots began after a teenager was shot by police in Tottenham. By the end of August millions of pounds worth of damage had been done in arson attacks, lootings and acts of vandalism. The mob mentality shown in these riots was a product of the belief that not everyone could be arrested and stopped all at once. However, many people who had no previous convictions later got arrested for rioting and police believe that this was because of their false belief that they would go unpunished. Keir Starmer QC argued, in an article for the Guardian, that it was far more important to ensure that the rioters were punished quickly, so they knew that they would not get away with their crimes, than it was to ensure they got lengthy sentences.[5] This is a very strong argument based on the classicist view that certainty in punishment will act as a better deterrent than severe punishment because criminals will know that they will be punished for criminal behaviour and this is what makes them think twice about whether the crime really is worth committing.

Opposing Hobbes is the famous Swiss philosopher Rousseau[6] who argues that a state of nature would be a state of paradise. For Rousseau,  man is naturally altruistic and society creates the opportunity to be evil and commit crime by giving us land to compete over and opportunities to fight for. Rousseau explained that when a man first marked out a piece of land as his own the marking should have been torn down and many crimes and wars would have been prevented by doing so. His salient point is that we should have remembered that the fruits of the Earth belong to everyone and claiming ownership and rights over the Earth leads to us being taken out of our natural altruistic state and into a state of brutal competition for survival over limited resources.

When applying Rousseau’s philosophy to the question: To what extent is a criminal born or made, it is clear that criminals are made by social and environmental conditions that create situations where crime is effective or even necessary in order for humans to be successful in society. For example the need to steal if we are starving; the economics of society dictates that money is needed to pay for food and food from the Earth is sold and not shared between humans. This fundamental idea that crime is a result of environmental and social factors has blossomed in modern times and will be covered in the next section when I consider what makes humans commit crimes.

Can we overcome the natural thirst for blood?

 In 1810, German physicians Gall and Spurzheim[7] conducted experiments in phrenology[8] to try to discover how the shape of the skull linked to a person’s criminal tendencies. Gall and Spurzheim believed that the human mind was made up of different faculties, each represented in a different area of the brain. They hypothesized that each of the areas of the skull were proportional to the person’s propensities. They believed that the skull fitted around the brain so by feeling the shape of the criminal’s skull they could measure the area of the skull that overlies the corresponding area of the brain and work out their personality traits. A large area meant that the criminal used that faculty extensively and a smaller area meant that faculty was less prominent in that particular criminal. They then used these findings to construct diagrams of the criminals’ skulls and list their natural tendencies. The findings were not meant to reveal that certain criminals had certain tendencies that they could not change; in fact Gall and Spurzheim believed that even natural inclinations towards traits such as aggression could be combatted by strict training and will power. Their main conclusion was that natural tendencies to commit crime can be found using phrenological methods and that the criminals with larger measurements in areas that represented the aggressive, violent and angry faculties were physically pre-determined to be criminals if they did not receive training to overcome their natural inclination, towards crime. Although phrenology is now an obsolete science Gall and Spurzheim’s assumption that personality traits can be found in localized parts of the brain is considered a foundation of neuroscience

Phrenology diagram- as used by Gall and Spurzheim. Image source: https://sites.google.com/site/physiciki/Home/pseudoscience/period-2/phrenology

Early positivism shared a belied in determinism[9]. Determinists believe that crime is a caused by individual, social or environmental factors depending on the context. For example, poverty is more likely to cause someone to steal food or possessions to sell for money than any natural instinct. While determinism is an important position, in modern criminal justice systems it is rejected on the grounds that if the person who commits a crime, such as stealing, only did so because of a social factor and not through their own free will then punishing them for an external factor they had no control over is unjust. Punishment, on the contrary appeals to more common sense ideas of responsibility.

There are two main categories of determinism: hard determinism[10] and soft determinism[11]. Hard Determinism is the belief that all of our choices to act are already pre-determined. For example a thief’s desire to steal is determined by a multitude of factors including the fact he has stolen in the past and gained respect from his peers in doing so and he enjoys the thrill of stealing and the possibility of getting caught. If hard determinism is right, then the criminal justice systems of modern democratic societies face huge issues because it means that criminals are being punished despite having no choice but to commit crime and no free will to overcome these predetermined factors.

Soft determinism combats the issues associated with having no free will by arguing that our choices are only pre-determined to an extent. We will have past experiences and preferences but ultimately we can override these determinations and make the complete opposite choice if we want to. Therefore, although the thief may enjoy the thrill of stealing, the risk associated with getting caught and the respect he receives from his peers for getting away with the crime, he still has enough free will to be able to choose not to commit the crime at all and seek thrills and respect from another legal activity. Soft determinism therefore allows determinism as a theory to be correct but still allow criminals to be punished because their crimes are a  partially a result of free will.  Neither hard nor soft determinists would go as far as to say that criminals are born but hard determinists would argue that they cannot be held responsible for their crimes because they were caused by external forces that they cannot resist, whereas soft determinists would argue that criminals are made because they retain the free will to be able to act on determinist factors or not.

Finally I shall consider Bentham’s Utilitarianism[12]. Bentham believed that humans are naturally hedonistic and will do whatever makes them happy. He formulated a hedonic calculus[13] whereby the person weighs up the advantages and disadvantages of an action before deciding which choice to make. If hedonic calculus is accurate, it suggests that criminals are rational human beings like law abiding citizens who think carefully about the consequences of their actions. Bentham then suggested a normative theory of utilitarianism whereby people should act for the greatest good of the greatest number. This is the primary underpinning of modern democratic criminal justice systems. Criminals are punished because they are rational human beings who chose to break the law and need to be rehabilitated or deterred so that in society the greatest good can be done for the greatest number. However, it should be noted that Bentham’s utilitarianism was a normative theory not descriptive and so just because people should do the greatest good for the greatest number does not mean that in practice they actually do. If someone acts selfishly and commits a crime that hurts more people than it helps, Utilitarian’s argue that  they should be  punished because they put their hedonistic needs before those of society.

How can we control the urge to commit crime?

In this final section I will consider how we control the urge to commit crime. Lombroso’s theory of avatism[14] argued that criminals are born and are essentially evolutionary throwbacks that resemble ancestral forms of life. This theory of avatism states that criminals usually have ancestral characteristics such as large ears, thick lips and large eye orbits. Criminals who commit crimes in acts of passion have something in their natural temperament that makes them instinctive and primitive and these impulses cannot be changed. This theory, although in its physical sense is outdated and disproven, has led to further experiments about the physicality of criminals. For example, Sheldon[15] conducted experiments that linked a large physical build to higher chance of committing crime. More recently, in the 1990s with the torture and murder of Jamie Bulger[16] committed by 2 boys aged 10 and 11 there has been a new urge to discover exactly how a child so young could be capable of such evil. 

Child murderers have always been somewhat of a phenomenon to criminologists, as they are in the unique situation of still being young enough to have not learnt much about which behaviours are socially acceptable, but enough to know what their natural instincts tell them to do and what they have learnt from their social environment. Bandura[17] created an experiment whereby he claimed that crime is a result of internal processes, in the experiment a group of children were shown a video of an adult attacking a ‘bobo’ doll and the other group of children were not shown anything. When placed in a room with the doll, the children who saw the video began violently attacking the doll and the children who saw no video were far more passively playing with the doll. For Bandura, this proved that a tendency to commit violent crime is a result purely of a child’s instinct to copy a parent or other adults and therefore to control this behaviour we should be monitoring adult’s behaviour around young children and controlling the level of violence they see from role models such as TV character, sportsmen and other children.

Finally, famous classicist Beccarria[18]argued that criminals are completely rational people like everybody else, this led to the creation of rational choice theory whereby it is believed that crimes will be committed if the advantages outweigh the disadvantages. The notorious case of R v Ahluwalia[19] supports this theory. In Mrs Ahluwalia’s case she was systematically beaten and raped by her husband over a number of years until one night she doused him in petrol and set fire to the bed he was sleeping him, killing him. This case demonstrates clearly that even murderers make rationale choices. Mrs Ahluwalia decided that a life possibly in prison away from her family and friends would be worthwhile, given that the alternative was a future filled with abuse and rape at the hands of her husband.  Classicists would argue that one way to deter criminals is to make punishment a certainty so that would-be criminals are less likely to deem the advantage of committing a crime is more worthwhile that the certain punishment they will receive.

Conclusions

To conclude, the claim that some individuals are born potential criminals in that they have natural instincts that sway towards aggression and violence holds great appeal.  This is an internal process not linked to their physical build. However, even assuming that someone is naturally inclined towards a life of crime their social and environmental surroundings can mean they will not act on their primitive urges. Links between crime and the criminal’s physical appearances such as that suggested through the science of Phrenology has been outdated by modern psychology which shows no link between brain physicality and crime. However, ongoing experiments looking at the link between high levels of hormones such as testosterone and high tendency towards violence[20] suggest that these people are more likely to commit crimes, but again this can be controlled by will, therapy and training. The argument that criminals are rational is very strong and cases such as that of Mrs Ahulwalia suggest that even in crimes of passion they have weighed up the good that will come from committing the crime against the bad. Changes to the law, influenced by classical criminology such as ensuring that punishment is certain, would mean that people would be less likely to find the advantages crime outweigh the disadvantages and so crime would be reduced.

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[1] Thomas Hobbes, Leviathan (first published 1651, Penguin 1985)

[2]Julia Driver ‘The History of Utilitarianism’ (Stamford Encyclopaedia of Philosophy, 27 March 2009) http://plato.stanford.edu/entries/utilitarianism-history/ accessed 26/03/14 at 16:45

[3] Plato ‘The Republic of Plato’ (translated by Cornford, first published Oxford University Press 1941) Book 2: Ring of Gyges

[4] London Riots- http://www.bbc.co.uk/news/uk-england-london-14439970

[5] //www.theguardian.com/uk/2012/jul/03/riot-prosecutions-sentences-keir-starmer

[6]Jean-Jacques Rousseau, ‘Discourse on Inequality’ 1754( first published by  Marc-Michel Rey in 1755)

[7] Franz Josef "On the Functions of the Brain and of Each of Its parts: With Observations on the Possibility of Determining the Instincts, Propensities, and Talents, Or the Moral and Intellectual Dispositions of Men and Animals, by the Configuration of the Brain and Head, Volume 1." (1835  Marsh, Capen & Lyon)

[8]The Encyclopaedia Britannica: Phrenology http://www.britannica.com/EBchecked/topic/458369/phrenology accessed on 16/03/14 at 17:27

[9], Peter Van Inwagen ‘An essay on Free Will’ (Oxford University Press 1983)

[10] Richard Doubles The Non-reality of Free Will (1995): Hard Determinism

[11] Ibid: Soft Determinism

[12] Julia Driver ‘The History of Utilitarianism: Section 2: The Classical Approach’ (Stamford Encyclopaedia of Philosophy, 27 March 2009) http://plato.stanford.edu/entries/utilitarianism-history/ accessed 26/03/14 at 17:41

[13] Hedonic calculus http://philosophy.lander.edu/ethics/calculus.html accessed on 26/03/14 at 18:00

[14] Cesare Lombroso ‘Crime, Its Causes and Remedies’ translated by Henry Horton (Little Brown and Company 1911)

[15]Arraj, ‘Tracking the Elusive Human Volume 1: Part II: W.H. Sheldon's Somatotypes’ Inner Growth Books LLC 1988

[16]Scott, ‘Death of James Bulger’ http://www.crimelibrary.com/notorious_murders/young/bulger/1.html accessed 25/3/14 14:35

[17]Saul McLeod ‘Bobo Doll experiment’  published 2011: Bandura’s Bobo doll experiment http://www.simplypsychology.org/bobo-doll.html accessed 21/03/14 at 17:35

[18] Becarria ‘On Crime and Punishments’ (first Published in Italian in 1764) English Translation 2000 University Press Cambridge

[19] R v Ahluwalia [1993] 96 Cr App R 133

[20] Book, Starzyk and Quinsey ‘The relationship testosterone and aggression: A meta –analysis’ Aggression and Violent Behaviour: A Review Journal, Vol 6, Issue 6, 579-599

Children and Families Act 2014

I am very humbled to announce that my original article on this topic has now had to be removed as it has been published by The Lawyer magazine.
Please follow this linkhttp://ml2b.thelawyer.com/3027417.article?mobilesite=enabled
Thank you so much to each one of you 1800 readers I could not have done this without you.

Kelly Thornton

Transatlantic Trade deal: A global union or a constitutional nightmare?

The Transatlantic trade deal: what is it?

The purpose of the Transatlantic Trade and Investment Partnership (TTIP) is a deal which will enable the US and EU to remove their regulatory differences. Prima facie, this seems like a great idea and a good way to create a more global and free market however with the shock statement from Lord Livingstone yesterday saying that this deal will include the NHS it seems the deal will do more damage than good.

For more information on what the TTIP is please see:  http://www.independent.co.uk/voices/comment/what-is-ttip-and-six-reasons-why-the-answer-should-scare-you-9779688.html

Image source: http://www.nwoo.org/2014/06/21/us-velvyslanectvi-v-nemecku-da-20-000-usd-na-ttip-propagandu/

The issue

The problem with the TTIP is it will provide businesses with the power to sue governments whom defending their citizens.  Many legal theorists and lawyers take issue with the TTIP because It would allow a secretive panel of corporate lawyers to overrule the will of parliament and destroy our legal protections. This goes against the key principle of the UK's constitution: Parliamentary Sovereignty.

The mechanism through  all this will happen is known as investor-state dispute settlement. The shocking news is that this settlement is already being used in many parts of the world to destroy regulations protecting people and the planet. Investor-state dispute rules found in in trade treaties allow companies to sue the countries that signed the treaties. Worryingly the rules are enforced by panels which are not safe-guarded, the hearings are  secret and the judges are corporate lawyers, many of whom work for companies of the kind whose cases they hear. This is all gobsmackingly unconstitutional and the defenders of fair trials and human rights are up in arms about it. Secret hearings limit the public's right to see current cases published and this risks clouding the Rule of Law and creating a less transparent and unjust legal system here in the UK. The idea that some of the judges may be biased means that the defendants will never be guaranteed a fair trial, a human right under the HRA 1998 s 6. Worst still is the fact that this entire system is not subject to appeal as citizens and communities affected by their decisions have no locus standi.

For more information surrounding the debate about the Investor- state dispute settlement please see this great opinion piece in the Washington Post http://www.washingtonpost.com/opinions/debating-the-investor-state-dispute-settlement/2014/10/05/2c2477ec-4b15-11e4-a4bf-794ab74e90f0_story.html

The NHS

The big worry surrounding the TTIP is that it could lead to the NHS being bought by a big commercial player and there is nothing that we can do to prevent this.  It will give big business vast new powers over public services which could see our human rights breached and environmental protection rules disregarded. 

For a more detailed analysis of the threat to the NHS please see: http://www.theguardian.com/business/2014/sep/07/trade-unions-trade-deal-threat-to-nhs

Conclusion 

The conservatives have been  made aware of the opposition to the TTIP and suggest that it will benefit the UK by £10bn but statistics also show that 1m jobs will be lost in the EU. The conservatives are trying to kill off the opposition by insisting that those opposing the TTIP  are simply anti-american and that this is too good an opportunity to miss as it could mean we sell our NHS services to the US. However, this is only one side of the picture on the other thousands if not millions of jobs will be lost, big public authorities could be nationalised and our constitution faces a future in tatters. There is huge outcry for a referendum on this issue. However, despite the TTIP being a constitutional nightmare it is unlike to result in a referendum come as it seems Mr Cameron has made up his mind.

Recklessness and Intention- a criminal law conundrum

The value of intention and recklessness in English Criminal Law

Intention and recklessness are both vital in English criminal law. It is a defendant’s intention which is crucial when courts decide if they had a guilty mind and subsequently whether they should be punished. Recklessness is vital when deciding the facts of a case and whether the defendant should be punished for not adequately assessing the risks of the criminal act they are charged with. Intention and recklessness can both provide the mens rea element of crime which allows a defendant to be convicted of a crime. In reality, this means that recklessness and intention carry different punishments but both can be used to ensure that the English criminal law is effective in punishing people who do not consider risks or intend to commit a crime. This article is going to examine what is meant by intention and recklessness, the ways in which they are similar and different and the reasons why there has been uncertainty surrounding their definitions.

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Intention

Firstly intention, intention is critical when a court decides whether or not a defendant should be convicted a crime. In order to define intention we must break it down into two forms: direct and indirect intention. Direct intention is the aim of the defendant. This is essentially, whether the defendant would consider his action a failure if a desired consequence did not occur as a result of his action. A case which helps define direct intention is R v  Mohan[1], in this case Mohan was asked to slow down policeman, he did, but when he got near the policeman he accelerated  towards the policeman who had to jump out of the way to avoid being knocked over. Mohan was convicted of dangerous driving after it was judged that by accelerating the car towards the policeman he had direct intention to kill or seriously harm the policeman. This is summarised in the appeal judgement of James LJ where he states that the appeal has failed because:

‘The charge is an attempt to cause bodily harm by wanton driving. It has to be shown to you that the appellant deliberately, without justification, irresponsibly, drove his vehicle in such a manner as was likely to cause some bodily harm.’

Indirect intention is found when the defendant may intend a consequence although that consequence is not their objective if it is foreseen. A case that helps define indirect intention is R v Woollin[2]. In this case Woollin threw his baby across the room in a fit of rage. He argued that he was aiming for the pram and had no intention of killing or harming his baby. The baby missed the pram and hit a hard surface which fractured his skull and later died as a result of his injuries. At first instances and at appeal Woollin was convicted of murder. His conviction was quashed by the House of Lords where his murder conviction was substituted for manslaughter on the grounds that he did not have direct intention to kill his baby and that his intention was indirect. The House of Lords used Lord Lane LJ’s judgement from R v Nedrick[3] to justify convicting Woollin of manslaughter. Lord Lane LJ stated that a defendant can only have direct intention when:

‘The defendant recognised that death or serious injury would be virtually certain, barring some unforeseen intervention, to result from his voluntary act’

Wollin realised that there was a risk of serious injury to his baby but he did not believe this risk to be virtually certain and so he was not convicted of murder.

Recklessness

There are two forms of recklessness: subjective and objective. Subjective recklessness is defined in R v Cunningham[4]. In this case Cunningham ripped a gas meter off of a wall, the gas then leaked out and poisoned the victim. It was judged that Cunningham had malice because ripping the gas meter off the wall was reckless.  Cunningham was convicted at first instance but his appeal was accepted because he did not believe that the victim would be harmed. In this case the defendant is aware of the risk and acts recklessly and so he is said to be subjectively reckless. Objective recklessness occurs when it does not need to be proved that the defendant was aware of the risk, if the risk is was obvious one. A person is objectively reckless when they create a risk without giving thought to it.  Objective recklessness differs from subjective recklessness because the defendant does not have to be aware of the risk, they need only take a risk that a reasonable person would have foreseen. A leading case that helps define objective recklessness is R V Caldwell[5]. This case creates the model direction for objective recklessness as it was judged that a person is reckless for the purpose of criminal damage if he does an act which creates an obvious risk that property will be destroyed or damaged and when he does that act he either has not given any thought to the possibility of there being such risk or has recognised that there was such risk and has nonetheless gone on to take it. Caldwell has since been overruled by the judgement in R v Gemmel[6] where the defendants aged 11 and 12, lit some newspapers which set fire to a wheelie-bin which set fire to a shop, causing  £1,000,000 of damage. On appeal they were found not guilty of arson as the jury believed that Caldwell was wrongly decided. The Criminal Damage Act 1971 states that a person is guilty of an offence when they are:

‘(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged.’[7]

Intention and recklessness are similar in some respects[8]. Firstly they both form part of the mens rea of crimes.  For example in a murder trial intention to kill must be proven in order for the defendant to have had the necessary mens rea to be convicted of homicide[9]. Likewise it must be proven that the defendant was driving recklessly in order for him to have the necessary mens rea to be convicted of causing death by careless or inconsiderate driving[10]. Both intention and recklessness are metal states that the defendant might experience when he is performing the actus reus of a crime. Also they both have clear links to risk. Intention involves the conscious taking of a risk in order to achieve an aim and recklessness involves taking an unjustifiable risk either consciously (subjective recklessness) or unconsciously (objective recklessness).

Differences between recklessness and intention

There are differences between intention and recklessness. It could be argued that intention is more thought out than recklessness[11]. When a defendant has intention to commit a crime they are taking a risk in order to achieve an aim. They have voluntarily chosen to take this risk and are taking it as method of achieving their intention. Whereas recklessness is seen to be more careless, when a defendant is reckless they may be aware of the risk they are taking but they are not taking the risk in order to achieve anything. Culpability is also a major difference between intention and recklessness. It is widely believed that defendants with an intention to commit a crime deserve punishment because their mental state is guilty. However when it comes to objective recklessness there appears to no culpability because the defendant was not even aware of the risk that was being taken.  The final difference between intention and recklessness is the link they have to a reasonable person. Intention can be considered outside of what is reasonable. A defendant can intend to commit a crime both rationally (for example calmly calculating how to kill someone) and irrationally (shooting someone in a fit of rage but still intending to kill them) either way this intention is part of a guilty mental state. Unlike intention, recklessness must be considered in relation to a rational person. Subjective recklessness is still irrational even though the defendant was aware of the risk, what makes it reckless is that a reasonable person would not have chosen to do it. Objective recklessness is always judged in relation to a rational person and cannot exist if it is not considered in relation to a rational person.

The uncertainty surrounding recklessness and intention

Many uncertainties surround the definitions of intention and recklessness. This is mainly because three questions arise: should being reckless be punished? Should it matter if the defendant considered risk? Should we measure a defendant’s taking of a risk against a reasonable person?  Firstly it is uncertain whether recklessness should be punished. In order to decide we need to look at the function of punishment in the criminal law. If punishment is a means of deterring future offenders,[12]recklessness should be punished so that in future people take time to consider risks. If punishment is part of a paternalistic criminal law system,[13] subjective recklessness should be punished as it could stop citizens taking unjustifiable risks which could harm themselves and others but objective recklessness should not be punished because it seems unjust for someone to be punished for taking a risk they were unaware of. Or perhaps the criminal law is there to protect society therefore all recklessness should be punished in order to prevent harm to society. Secondly when deciding whether it should matter if the defendant considered risk we must consider the effects on society. If it doesn’t matter society could suffer because people could take risks knowing they cannot be punished. However if it does matter, there are many implications for legislation. For example: how do we know what risks should be considered? Are some risks too unlikely to need consideration? Should defendants consider all risk no matter how small? Thirdly it can be argued that we should measure a defendant’s taking of a risk against a reasonable person because this is a good way of judging what is acceptable and it helps us to predict outcomes based on what a reasonable person would do. However it could also be argued that everyone is different and so we should not be compared to a set reasonable standard as it takes away our individualism and in reality we are not all the same.

To conclude, intention and recklessness are both crucial parts of the mens rea of crimes. They are similar because they are both mental elements in crime and link to risk. They differ because intention is about the defendant’s aim whereas recklessness is about the careless taking of risk. There are many uncertainties surrounding the definitions of intention and recklessness because it is not clear why recklessness is punished or why it should matter that the defendant considered risk and there are issues with comparing each defendant to a set ‘reasonable man’. In order to clarify the definitions of intention and recklessness we need to look at the function of the criminal law, the effect different definitions have on society and the way in which the definitions could change how risk taking is viewed by society.

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[1] R v Mohan [1975] 2 All ER 193, CA

[2] R v Wollin [1998] 3 WLR 382

[3] R v Nedrick [1986] 3All ER 1

[4] R v Cunningham [1957] 2 QB 396

[5] R V Caldwell [1982] AC 341

[6] R v Gemmel [2003] UKHL 50

[7] Criminal Damages Act 1971 s1

[8] Lucy William, ‘controversy in the criminal law’ (2006) http://onlinelibrary.wiley.com/doi/10.1111/j.1748-121X.1988.tb00646.x/full accessed 15/11/12 02:35

[9] Homicide Act 1957

[10] Road Traffic Act 1988 s2B

[11] Andrew Halpin ‘Definitions and directions: recklessness unheeded’ (2006)  http://onlinelibrary.wiley.com/doi/10.1111/j.1748-121X.1998.tb00019.x/abstract accessed 15/11/12 23:30

[12]  Paul H Robson and John M Darley ‘Does Criminal law deter? A behavioural science investigation’ (Oxford journal of legal studies volume 24 no 2, 2004, p 173-205) http://webscript.princeton.edu/~psych/psychology/research/darley/pdfs/Does%20Criminal%20Law%20Deter.pdf accessed 10/11/12 15:00

[13] Richard Tur ‘ Paternalism and the criminal law’ (2008) http://onlinelibrary.wiley.com/doi/10.1111/j.1468-5930.1985.tb00031.x/abstract accessed 12/11/12 at 12:05